Taylor Swift, the ACLU and Your Online Reputation

So, you have been compared to Adolf Hitler and accused of supporting the views of white supremacists. What can you do about it? Well, if you are Taylor Swift, the short answer is probably not very much. And what if you are not a megastar? Does this change the analysis?

An article posted on the culture website PopFront, entitled “Swiftly to the alt-right: Taylor suddenly gets the kkk information,” has engendered a strong response from Taylor Swift. Ms. Swift, by and through legal counsel, contacted Pop Front and demanded the immediate removal of the article and a retraction. The four-page cease and desist letter takes an aggressive stance, alleging that portions of the PopFront article are “defamation per se”. Curiously, the letter contains an admonition that the letter itself comprises “a confidential legal notice and is not for publication,” and that “[a]ny publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of copyright act.”

Perhaps not surprisingly, PopFront responded to Ms. Swift’s letter through the ACLU. In its reply, the ACLU undertakes a scathing legal dissection and rebuttal of Ms. Swift’s defamation claims, invoking established First Amendment protections for this kind of free speech, especially given that Ms. Swift is a public figure (raising the bar for an actionable claim of defamation to a showing of “actual malice”) and that PopFront is essentially a blog.

Quoting from a prominent 2012 California defamation opinion, Summit Bank v Rogers, the ACLU asserts that “online blogs and message boards are places where readers expect to see strongly worded opinions rather than objective facts.” The ACLU letter emphasizes that “in the online world rhetorical hyperbole, vigorous epitaph, lusty and imaginative expressions of…. contempt and language used in a loose, figurative sense, have all been accorded constitutional protection.”

The debate between Ms. Swift and the ACLU has now received widespread national press coverage.

What are the implications of this dispute in terms of your ability to protect your online reputation?

First, it should be noted that those who are active in local civic organizations or serve on local publicly elected boards are increasingly being treated as “public figures” for purposes of any defamation analysis.

Second, most people would agree that there has been a significant deterioration of decorum and tact, especially online, with “speech” now often being used as a bludgeon to intimidate, and even silence perceived opponents.

In this charged climate, the last thing that you seemingly would want to do is essentially pour gasoline on the fire and directly engage your critics, especially through aggressive tactics like strongly worded cease and desist letters.

Rather, the more prudent course in many instances is to let sleeping dogs lie and not respond. Better to let a harsh blog post languish in obscurity, rather than drawing attention to it by responding and creating a higher profile controversy.

In lieu of responding directly, you can post your own materials that effectively address and refute the assertions contained in offending blog posts. Certain prominent politicians have been issuing tweets recently that are so preposterous that readers are now starting to take them with a grain of salt. Perhaps this is a blessing in a way, in that “consider the source” may be gaining in relevance and importance for the general public. This trend militates against a direct response.

If you feel you must respond directly, especially through legal counsel in a formal cease and desist letter, then here are a couple guiding precepts to consider:

It is best to assume that your letter is going to be posted online, and draft it accordingly with this expectation in mind. Trying to “chill” dissemination seems futile and is usually destined to backfire (unless you are eager to engage with the ACLU on issues of free speech protection).

Second, because of the distinction between fact and opinion in defamation law, it is crucial to focus on specific factual misstatements that can be clearly documented, rather than merely seeking to rebut “opinions.”

Perhaps we all need to become a bit more thick-skinned now that the gloves seem to off in our society, especially if we have any inkling of participating in civic affairs in some capacity. The real tragedy would be if we avoided anything controversial and limited our public discourse to insipid platitudes.